In re B. Children

2021 Ohio 935

Opinion

[Cite as In re B. Children, 2021-Ohio-935.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: THE B. CHILDREN. : APPEAL NO. C-200419 TRIAL NO. F13-1795Z :

: O P I N I O N.

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 24, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Geoffrey W. Pittman, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Megan Busam, Assistant Public Defender, Appellee Guardian ad Litem for the Children,

Roger W. Kirk, for Appellant Mother,

James W. Costin, Amicus Curiae, Guardian ad Litem for Mother. OHIO FIRST DISTRICT COURT OF APPEALS

W INKLER , Judge.

{¶1} The mother of C.B., A.B., D.B.1 and D.B.2 appeals the judgment of the

Hamilton County Juvenile Court granting permanent custody of her children to the

Hamilton County Department of Job and Family Services (“HCJFS”). Mother

challenges the grant of permanent custody on the ground that it was not in the

children’s best interest. Mother’s guardian ad litem filed an amicus brief in support

of mother’s position. The children’s longtime guardian ad litem and HCJFS argue

that a grant of permanent custody was in the children’s best interest, due to mother’s

failure to understand her need for the treatment of serious mental-health issues that

will continue to interfere with her ability to provide an appropriate and safe home for

the children. They request we affirm the juvenile court’s judgment. After careful

review of the record, we conclude that the evidence supported the juvenile court’s

decision, and we therefore affirm its judgment.

Background Facts and Procedure

{¶2} This immediate matter began in September 2017, when HCJFS filed a

complaint for neglect and dependency involving all four children. The allegations of

the 2017 complaint involved unsanitary home conditions, untreated mental-health

issues, and abusive, threatening behavior by mother towards her children. This

included asking them, “Who wants to die today.” The agency had raised similar

concerns about mother’s mental health and abusive behavior on multiple occasions

since 2013, resulting in the temporary removal of the children from mother’s care.

{¶3} On September 19, 2017, the court awarded the agency interim custody.

The agency placed eight-year-old C.B. and seven-year-old A.B. with their maternal

grandmother, six-year-old D.B.1 with a maternal cousin, and three-year-old D.B.2

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with a maternal aunt. The court awarded the agency temporary custody of all four

children in December 2017, after an adjudication of dependency. Mother was

ordered to provide HCJFS and the children’s guardian ad litem access to her home,

complete mental-health assessments and follow any recommendations, participate in

toxicology screenings, obtain and maintain sobriety, obtain and maintain stable

income and housing, and successfully complete parenting classes.

{¶4} HCJFS offered mother reunification services and obtained an

extension of temporary custody to enable reunification. On November 19, 2018,

after the children had been in agency custody for the statutorily-defined-12-months-

of-a-22-month period, and mother had not made sufficient progress, the agency

moved to modify temporary custody to permanent custody, with a goal of adoption.

The children’s guardian ad litem filed a report and recommended the grant of

permanent custody, noting, among other things, the instability caused by mother’s

reoccurring failures, and that the relative caregivers were licensed to adopt and

desired to do so. The children, who expressed to their guardian ad litem an interest

in returning to their mother and an interest in staying with their caregivers as a

second choice, were appointed an attorney pursuant to In re Williams, 101 Ohio

St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110.

{¶5} Although a magistrate had begun a hearing on the permanent-custody

motion, the subsequent unavailability of the magistrate resulted in a new hearing

before a visiting judge. That two-day hearing began on January 31, 2020, was

continued in progress, and concluded on September 9, 2020. The delay was

necessitated by the Covid-19 pandemic.

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{¶6} Before the start of the permanent-custody hearing, father executed a

valid permanent surrender of his rights as parent, consistent with his lack of

participation in any case plan or services.

{¶7} The evidence at the hearing on the motion for permanent custody

showed that mother did not sufficiently comply with or complete the ordered

services and failed to demonstrate any behavioral change suggesting the insight and

stability required to warrant reunification with the children, who were doing well

with their relative caregivers.

{¶8} Specifically, the evidence, including psychological evaluation reports,

demonstrated that mother suffers from long-term mental-health issues that interfere

with her functioning. One evaluator, Dr. Stephen Billman, who testified at the

permanent-custody hearing, explained his diagnosis of “Unspecified Personality

Disorder with Borderline, Narcissistic, and Antisocial Features” due to mother’s

issues with social functioning, manipulative behavior, mood changes, expressions of

self-importance, and lengthy history of not cooperating with service providers and

professionals. He had recommended that mother participate in psychotherapy, but

admitted that she would be difficult to engage and treat due to her presenting with a

high level of the disorder.

{¶9} Consistent with Dr. Billman’s assessment, mother made little progress

in understanding her need for continued intervention and treatment, despite the

provision of services. Mother blamed her lack of progress in part on a poor

relationship with her caseworker. But the evidence revealed mother caused the poor

relationship, which made it impossible for the agency to confirm her housing

situation and claims of at least five different employers over the relevant period.

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Mother even bragged to Dr. Billman about her lack of cooperation, revealing she

liked being hostile towards caseworkers “to see them fold.”

{¶10} Although mother did participate in some counseling, she was not

consistent and did not complete it. Importantly, she did not gain insight into her

condition or credibly acknowledge her need for on-going therapy. Tellingly, when

asked if the agency’s concerns about her mental health were valid, she replied, “No.”

{¶11} Mother completed parenting classes at Beech Acres, but ignored the

program’s request that she address her mental health before participating. She was

further assigned a parenting coach, but this coach expressed serious concerns,

including that mother failed to develop an understanding of the role she played in

her children being in HCJFS custody and lacked appropriate decision-making skills.

These concerns were on display at the hearing, as mother suggested that she was

better equipped to determine the children’s needs than a licensed professional, even

though she was unaware of their needs due to lack of involvement.

{¶12} The ongoing HCJFS caseworker testified in January 2020 that mother

and the children were bonded and mother regularly communicated with them on the

phone. But mother was not seeing them in person every week despite open

visitation, and the visitation never progressed beyond the supervised level due to

mother’s lack of progress. The caseworker testified that the children and relative

caregivers were well-bonded, too. Further, she relayed that those relative caregivers

are licensed to adopt, that she had explained to them the differences between legal

custody and adoption, and that the agency’s decision to request permanent custody

is consistent with their desires. The caseworker repeated this testimony in

September 2020.

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{¶13} In addition, the caseworker testified that mother tested positive for

drug use, engaged in repeated irresponsible behaviors such as driving without proper

licensing, and had been repeatedly formally accused of violent criminal behavior

involving a “significant other.” Mother testified that she was willing to stop using

marijuana, but she had not done so despite a court order issued almost three years

prior. She also downplayed the significance of her legal difficulties and lacked any

insight as to how they affect her ability to parent and provide a safe and stable home

for her children.

{¶14} Upon the conclusion of the testimony, the parties submitted written

closing arguments. Subsequently, the juvenile court granted HCJFS’s motion and

issued a decision explaining the judgment. Mother’s sole assignment of error on

appeal challenges the award of permanent custody on sufficiency- and weight-of-the-

evidence grounds.

Analysis

{¶15} In this case, before the juvenile court could grant the agency’s motion

for permanent custody, it was required to find by clear and convincing evidence that

one of the factors in R.C. 2151.414(B)(1)(a)-(e) applied and that the grant of

permanent custody was in the children’s best interest. See R.C. 2151.414(B)(1).

Mother concedes the state proved the 12-of-22-month factor of R.C.

2151.414(B)(1)(d). Mother contends, however, that the evidence did not support the

juvenile court’s best-interest finding. We disagree.

{¶16} In determining the children’s best interest, the juvenile court was

required to consider the factors delineated in R.C. 2151.414(D)(1)(a)-(e), as well as

“all” other “relevant factors.”

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{¶17} As for the factor focusing on children’s interaction and

interrelationship with others, the juvenile court determined that the children had no

bond with their father. Further, the court could not determine the strength of the

bond with mother because her visitation had not progressed beyond supervised. The

presence of relatives had always provided a level of safety to the children during the

visits. Conversely, the court noted the children were bonded with each other, and it

credited the relative caregivers for allowing the children to “nurture” that bond.

{¶18} As for the factor that requires consideration of the “wishes” of the

children, the court found that the children at times had expressed their desire to be

reunited with mother, but also had expressed a desire to remain with their current

caregivers.

{¶19} As for the factor involving the children’s immediate custodial history,

the court noted that the children had been in the custody of HCJFS since September

2017, and placed with appropriate, nurturing relative caregivers.

{¶20} The final statutory factor of particular importance to the court’s best-

interest analysis is the one focusing on the children’s need for a legally secure

permanent placement and whether that type of placement could be achieved without

a grant of permanent custody to the agency. The court cited compelling reasons

weighing for permanent custody to the agency.

{¶21} First, the court found that the agency had made reasonable efforts for

reunification and the children could not be returned to either parent within a

reasonable time. Specifically, with respect to mother, the court found mother had

been offered a multitude of services that she reluctantly began and ultimately refused

based on her “resolute belief” that she was not in need of such services. Based on the

evidence, including mother’s testimony and medical reports, the court noted that

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“perhaps due to the severity of her mental health issues, [mother] cannot reasonably

be expected to engage in the kind of long term treatment necessary to stabilize her to

the point of being able to provide a consistent safe and nurturing environment to the

children.”

{¶22} While mother testified that the agency’s concerns about her mental

health were invalid, she also claimed that she had been prevented from completing

some provided services because of the restrictions arising because of the Covid-19

pandemic. The court found the explanation unpersuasive based on the evidence,

which showed “the long pattern of non-cooperation with services which pre-dates the

onset of the [2020 pandemic] limitations.” The court’s reasoning is amply supported

by the record.

{¶23} Finally the court noted the current plan for the children was adoption

by their relative caregivers. Mother does not dispute this fact, but contends the

relative caregivers could serve as the children’s legal custodians without the very

permanent termination of her parental rights. At this stage of the proceedings,

however, a reunification with mother was not the “paramount concern.” See In re

Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 65. The court

considered mother’s position, but rejected it as the caregivers had not petitioned for

legal custody and, regardless, considering all the circumstances, permanent custody

was more “appropriate and in line with the children’s best interest.” Notably, the

agency had been involved with the family since 2013, and the children’s longtime

guardian ad litem recommended permanent custody to HCJFS as in the children’s

best interest.

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Conclusion

{¶24} The juvenile court ultimately found in light of all the evidence that an

award of permanent custody to HCJFS was in the children’s best interest. In arriving

at the conclusion, the juvenile court applied the relevant statutory factors and made

factual findings that were based upon clear and convincing evidence. See In re A.B.,

1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 15. This is not a

case where the juvenile court clearly lost its way and created a manifest miscarriage

of justice in finding that it was in the best interest of the children to be placed in the

permanent custody of HCJFS. See id. at ¶ 16. Because the statutory factors were

met, we hold the juvenile court did not err in granting permanent custody to HCJFS.

Accordingly, we overrule the assignment of error and affirm the juvenile court’s

judgment.

Judgment affirmed.

BERGERON, P.J., and BOCK, J., concur.

Please note:

The court has recorded its own entry on the date of the release of this opinion.